1. Generally, how and when have provisional application clauses been used in international agreements?

2. Are there any precedents in international law where entry into force of one treaty has been tied to an external condition like the ratification of another treaty?  

Question 1

Provisional application clauses have been increasingly used in recent years for example in the Energy Charter and a number of arms control treaties, including the 1992 Chemical Weapons Convention and the Comprehensive Nuclear-Test-Ban Treaty (CTBT).

One commentator has summarised the reasons for making provisions for provisional application as follows:

“In general, the technique of provisional application is utilised when there is some urgency to implement a treaty or certain of its provisions before the treaty is ratified and enters into force for the party or parties concerned.⁶ The procedure may also be used where the negotiators are certain that the treaty will obtain the required domestic approval for ratification;⁷ to achieve legal continuity between successive treaty regimes;⁸ to attain consistency of obligations among the parties when amending or modifying a treaty;⁹ to circumvent political or other obstacles to the entry into force of a treaty;¹⁰ or in the context of preparatory institutional arrangements for new international organisations.^11”  (footnotes omitted)

Article by Andrew Michie, “The Provisional Application of Arms Control Treaties”, Journal of Conflict and Security Law/2005/Issue 3, November/Articles/The Provisional Application of Arms Control Treaties – C&S Law 2005 10 (345)

Such clauses are referred to in Article 25 of the Vienna Convention on the Law of Treaties which provides:

“1.A treaty or a part of a treaty is applied provisionally pending its entry into force if:

(a) the treaty itself so provides; or

(b) the negotiating States have in some other manner so agreed.

2. Unless the treaty otherwise provides or the negotiating States have otherwise agreed, the

provisional application of a treaty or a part of a treaty with respect to a State shall be terminated if that State notifies the other States between which the treaty is being applied provisionally of its intention not to become a party to the treaty.”

The time from which the obligation to provisionally apply the treaty arises depends on the wording of the provision, generally this will be when the treaty is adopted, unless (as is often the case) the clause states that it applies only to signatory states, in which case the obligation will not apply until a state has become a signatory. As provided in Article 25(2) of the Vienna Convention, the obligation to provisionally apply the treaty terminates if the State concerned notifies other Parties that it is not intending to become a party, unless the treaty provides otherwise or the Parties have otherwise agreed.

The period for provisional application can be time-limited or can be framed to apply beyond a specified date if the treaty has not entered into force by then, unless states  notify the depositary otherwise (an opt out as in the case of the 1994 Agreement on the Implementation of Part XI of UNCLOS).

The clause can be used to simply to allow parties to put in place the required institutional machinery to ensure that the treaty operates effectively upon entry into force or it can be used to preserve the status quo pending such entry into force or to ensure that commitments negotiated in the new treaty will not be undermined by actions taken by signatories prior to entry into force (signatories are also under the obligation to refrain from acts which would defeat the object and purpose of the treaty prior to its entry into force, as provided in Article 18 of the Vienna Convention).

Provisional Application Mechanisms

Provisional application can be provided for in a separate protocol to the new agreement, as was done in relation to the 1990 Treaty on Conventional Armed Forces in Europe. A Protocol on the Provisional Application of Certain Provisions of the Treaty on Conventional Armed Forces in Europe entered into force on signature of the Treaty which itself came into force in 1992. The Protocol lists the provisions of the treaty which are to be provisionally applied and provides that it will remain in force for 12 months but terminate earlier if either the Treaty enters into force or if a state party notifies all others that it does not intend to become a party to the Treaty. The Protocol could be extended by agreement.

Provision can also be made in the Treaty itself, as in the case of the 1992 OSCE Open Skies Treaty, Article XVIII (Section I) of which provides:

“1. Without detriment to Article XVII [on entry into force], the signatory States shall provisionally apply the following provisions of this Treaty:

[there follows a list (A) to (F)]

2. This provisional application shall be effective for a period of 12 months from the date when this Treaty is opened for signature. In the event that this Treaty does not enter into force before the period of provisional application expires, that period may be extended if all the signatory States so decide. The period of provisional application shall in any event terminate when this Treaty enters into force. However, the States Parties may then decide to extend the period of provisional application in respect of signatory States that have not ratified this Treaty.”

Article 18 of the 1997 Ottawa Convention on the Prohibition of Anti-Personnel Mines provides that:

“Any State may at the time of its ratification, acceptance, approval or accession, declare that it will apply provisionally paragraph 1 of Article 1 of this Convention pending its entry into force.”

Article 1(1) of the 1997 Convention provides:

“1. Each State Party undertakes never under any circumstances:

a) To use anti-personnel mines;
b) To develop, produce, otherwise acquire, stockpile, retain or transfer to anyone, directly or indirectly, anti-personnel mines;
c) To assist, encourage or induce, in any way, anyone to engage in any activity prohibited to a State Party under this Convention.”

Michie notes that, upon ratifying the convention, Austria, Mauritius, South Africa, Sweden and Switzerland submitted declarations of provisional application to the depositary, the Secretary-General of the United Nations.

It is also possible for states to establish a preparatory commission or ‘Prepcom’ which can take preparatory steps to facilitate the operation of the pending treaty but which may also effectively amount to provisional application. In the case of the 1996 Comprehensive Nuclear Test Ban Treaty, the treaty requires an elaborate verification and monitoring regime which involved the agreement of bilateral agreements. A supplementary treaty was adopted in 1996, served by a provisional technical secretariat.

Article 45(1) of the Energy Charter Treaty provides that contracting parties agree:

“to apply this treaty provisionally pending its entry into force for such signatory  in accordance with Article 44, to the extent that such provisional application is not inconsistent with its constitution, laws or regulations”

Question 2:

(a) Entry into force by reference to ratification of named countries

This has been done in the context of arms control:

“What distinguishes several major arms control treaties is that in addition to or instead of ratification by a certain number of states, their entry into force is made conditional upon the adherence of those states that are militarily or technologically the most significant with respect to the subject matter of the treaty. This objective may be achieved by providing for the ratification of all the negotiating states, certain named states or a category of states, or by using some other formula devised to include the most relevant players…”, see article by Andrew Michie, “The Provisional Application of Arms Control Treaties”, Journal of Conflict and Security Law/2005/Issue 3, November/Articles/The Provisional Application of Arms Control Treaties – C&S Law 2005 10 (345), page 2.

An example is Article IX of the 1968 Non-Proliferation Treaty (NPT) which required the ratification of the three depositary governments and 40 other states to enter into force:

“…2. This Treaty shall be subject to ratification by signatory States. Instruments of ratification and instruments of accession shall be deposited with the Governments of the United States of America, the United Kingdom of Great Britain and Northern Ireland and the Union of Soviet Socialist Republics, which are hereby designated the Depositary Governments.

3. This Treaty shall enter into force after its ratification by the States, the Governments of which are designated Depositaries of the Treaty, and forty other States signatory to this Treaty and the deposit of their instruments of ratification ….”

(b) Other conditions for entry into force

A number of disarmament treaties have set other conditions for their entry into force. These are also discussed in the Michie article:

“…the entry into force of one arms control treaty is sometimes made conditional upon the entry into force of another. In terms of article VII, paragraph 1, of the 1972 SALT I Interim Agreement³⁵ on strategic offensive arms, the interim agreement entered into force upon exchange of written notices of acceptance between the United States and the Soviet Union. This exchange was required to take place simultaneously with the exchange of instruments of ratification of the 1972 Anti-Ballistic Missile Treaty.³⁶ The 1993 START II Treaty³⁷ on further reductions in strategic offensive arms provided in article VI, paragraph 1, that it would enter into force upon the exchange of instruments of ratification between the United States and the Russian Federation. The same paragraph added the further condition that the Treaty would not enter into force before the entry into force of its predecessor, the START Treaty.” (page 4 of the article-footnotes omitted)